Nimco Real Estate Associates, LLC, et al v. Nashua, NH, City of, et al

Filing 35

ORDER granting 28 Motion to Strike. Exhibit 2 to document no. 22 , the declaration of Mark Hasselmann, is struck. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Nimco Real Estate
Associates, LLC, et al.
v.

Civil No. 16-cv-406-JD
Opinion No. 2017 DNH 056

Gregory G. Nadeau, as
Administrator of the Federal
Highway Administration, et al.

O R D E R
Nimco Real Estate Associates, LLC; Ultima Nashua Equipment
Corporation; and Anoosh Irvan Kiamanesh, who is manager of Nimco
and president of Ultima, brought suit against Gregory G. Nadeau,
the administrator of the Federal Highway Administration
(“FHWA”), the City of Nashua, and the New Hampshire Department
of Transportation (“NHDOT”), alleging claims that arose from the
acquisition of the plaintiffs’ property by eminent domain for a
highway project.

The plaintiffs move to strike a declaration

filed in support of Nadeau’s motion to dismiss, and Nadeau
objects.
Nadeau moved, pursuant to Federal Rule of Civil Procedure
12(b)(1), to dismiss the claims brought against the Federal
Department of Transportation on the ground that the court lacks

subject matter jurisdiction.1

In support, Nadeau submitted the

declaration of Mark Hasselmann, the Right of Way Program manager
at the FHWA.

The plaintiffs move to strike the declaration,

arguing that in considering a motion under Rule 12 the court
cannot consider matters outside the pleadings, that the motion
should not be converted to a motion for summary judgment, and
that the declaration is defective.
A.

Scope of Motion under Rule 12(b)(1)
In considering a motion under Rule 12(b)(1), the court

credits a plaintiff’s properly pleaded allegations and draws all
reasonable inferences in the plaintiff’s favor.
Foster, 845 F.3d 493, 497 (1st Cir. 2017).

Reddy v.

The court also

considers other materials and evidence in the record “whether or
not the facts therein are consistent with those alleged in the
complaint.”

Id.; see also Torres-Negron v. J&N Records, LLC,

504 F.3d 151, 163 (1st Cir. 2007).

Therefore, an affidavit or

declaration that would not be considered for purposes of a
motion to dismiss under Rule 12(b)(6) is properly considered for
purposes of a motion under Rule 12(b)(1).

See Mehic v. Dana-

Farber Cancer Inst., Inc., 2017 WL 637681, at *3 (D. Mass. Feb.

Nadeau is sued in his official capacity as the administrator
of the Federal Highway Administration, which is part of the
United States Department of Transportation.
1

2

16, 2017); Conservation Law Found. v. Cont’l Paving, Inc., 2016
WL 7116019, at *2 (D.N.H. Dec. 6, 2016).
Nadeau properly submitted a declaration in support of the
motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1).

As a result, the court need not

consider whether to convert the motion to one for summary
judgment pursuant to Rule 12(d).
B.

Declaration
The plaintiffs also argue that the declaration should be

struck because Hasselmann failed to show that he has personal
knowledge of the facts alleged in the complaint and failed to
provide additional information that the plaintiffs contend is
necessary.

Nadeau failed to respond to the plaintiffs’

challenge to the validity of the declaration.
To be considered as evidence for purposes of a motion
pursuant to Rule 12(b)(1), a declaration must be based on the
declarant’s personal knowledge.2

See Fed. R. Evid. 602; Friends

of Mariposa Creek v. Mariposa Pub. Utils. Dist., 2016 WL
1587228, at *5 (E.D. Cal. Apr. 19, 2016); Mark Wandering
Medicine v. McCulloch, 2014 WL 12588302, at *8 (D. Mont. Mar.
26, 2014); Corless v. Cole, 865 F. Supp. 2d 1002, 1019, n.4
The personal knowledge required is of the facts stated in
the declaration, not the facts alleged in the complaint, as the
plaintiffs suggest.
2

3

(C.D. Cal. 2011); Dimodica v. U.S. Dep’t of Justice, 2006 WL
89947, at *2 (S.D.N.Y. Jan. 11, 2006); Adarbe v. United States,
58 Fed. Cl. 707, 711, n.1 (Fed. Cl. 2003); Johnson v. United
States, 47 F. Supp. 2d 1075, 1079, at n.2 (S.D. Ind. 1999).

The

basis for personal knowledge may be provided by the witness’s
own statements.

Fed. R. Evid. 602; Friends, 2016 WL 1587228, at

*5.
In his declaration, Hasselmann states that he is employed
by the FHWA as the Right of Way manager for the New Hampshire
division.

Hasselmann’s duties include providing oversight and

guidance to NHDOT to ensure its compliance with the Uniform
Relocation Assistance and Real Property Acquisition Policies Act
of 1970 (“URA”).

He further states that he has been an employee

of the FHWA for sixteen years.

Hasselmann provides a factual

and procedural background for the highway project at issue in
the plaintiffs’ complaint.
The plaintiffs fault Hasselmann for not stating how long he
has served as right of way manager and for not explaining
whether the information he provides is based on his own
experience as right of way manager, on his research, or on
hearsay.

The plaintiffs also argue that Hasselmann does not

provide sufficient facts to support his statements that the
plaintiffs failed to file an administrative appeal.

4

Nadeau did not address the plaintiffs’ substantive
challenges to the declaration.

The plaintiffs are correct that

the declaration does not explicitly or even clearly show that
the statements made are based on Hasselmann’s personal
knowledge.

In the absence of any clarification about the bases

for his declaration from Hasselmann, the court cannot determine
whether the declaration is based on his personal knowledge.
Therefore, the declaration cannot be considered in support of
Nadeau’s motion to dismiss.
Conclusion
For the foregoing reasons, the plaintiffs’ motion to strike
(document no. 28) is granted.

Exhibit 2 to document no. 22, the

declaration of Mark Hasselmann, is struck and will not be
considered for purposes of the motion to dismiss.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
March 22, 2017
cc:

Jared Joseph Bedrick, Esq.
Steven A. Bolton, Esq.
Mark S. Bourbeau, Esq.
Matthew T. Broadhead, Esq.
Stephen G. LaBonte, Esq.
Celia K. Leonard, Esq.
Terry L. Ollila, Esq.
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